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Mar 25, 2014

Strong, assertive EC imperative

The recently held Parliament elections have created serious
controversies about the role of our Election Commission (EC). Many
citizens are seriously critical of its failure to deliver free, fair,
and inclusive elections on January 5, 2014. Many are even accusing it of
blatant partisan behaviour. The Commission must also bear the
responsibility for its inability to prevent violence, especially against
religious minorities, and thereby to ensure peaceful elections.

The EC is a constitutional body with a mandate for ‘superintendence,
direction and control’ in holding elections of the Office of the
President and the Members of Parliament, and carrying out other related
activities,

such as the preparation of the electoral roll and the
delimitation of constituencies (Article 119). The Commission is also
responsible for conducting elections of local bodies when called upon to
do so by the government. Such elections must be free, fair and
credible. In fact, according to Mahmudul Islam, the Constitution does
not envisage anything else than free and fair elections (Constitutional
Law of Bangladesh, Third Edition (Mullick Brothers, 2012, p. 973).

The EC not only has the constitutional mandate, but it also has the
international obligation, created by international laws and treaties, to
hold ‘genuine’ elections. For example, Article 21 of The Universal
Declaration of Human Rights, which is part of the body of international
law, clearly states that: ‘The will of the people shall be the basis of
the authority of the government; this will shall be expressed in
periodic and genuine elections which shall be by universal and equal
suffrage and shall be held by secret vote or by equivalent voting
procedures.’Similarly, The International Covenant on Civil and Political
Rights, which was ratified by Bangladesh in 2000, makes it clear that:
‘Every citizen shall have the right and the opportunity …to vote and to
be elected at genuine periodic elections which shall be by universal and
equal suffrage and shall be held by secret ballot, guaranteeing the
free expression of the will of the electors’ (Article 25).
Clearly, the criteria for genuine elections are: (a) opportunity to
contest freely, (b) opportunity to vote freely, and (c) absence of
manipulation by the authorities to influence electoral outcomes.
Stage-managed or engineered elections, where there is artificial
contestation, or no contestation at all, are not genuine elections.
Similarly,elections are not genuine, where the voters are unable to
freely cast their votes because of actual violence or threats of
violence or other forms of coercion. In addition, elections carry little
meaning if voters are deprived of information about the antecedents of
candidates in order to make informed decisions or are influenced to vote
one way or the other by money and other inducements.Such elections
obviously lack popular legitimacy and cannot be viewed as genuine.
Manipulations by political parties and or election authorities to affect
election results in favour of certain candidates or parties also leads
to fake and farcical elections.

It should be noted that elections are needed because they are the
essential pre-conditions for democracy, which is a constitutional
requirement for us. Article 11 of our Constitution clearly mandates that
“The Republic shall be a democracy …” Democracy requires consent of the
people, and only through periodic elections such consent can be
obtained. In fact,elections are the very essential initial steps for a
democratic system.Thus, our EC’s inability to hold credible elections on
January 5 is clearly detrimental to sustaining a democratic political
system in our country, which amounts to a breach of its constitutional
and international obligations.

Photo: driknews

Given its constitutional mandate and the international obligations to
hold free, fair, peaceful, meaningful and inclusive, that is, genuine
elections, the Election Commission, as the relevant constitutional body,
must have the necessary ability, strength and capacity to successfully
do so.Such ability, in turn, depends on the freedom the Commission is
given and the authority it enjoys to perform its job. The Commission’s
performance also largely depends upon how it is constituted and the
types of individuals making up the Commission. In addition, the
Commission must have the necessary capacity to effectively do what it is
mandated to do.

Freedom to Perform Independently
To be effective, the EC must have the freedom to perform independently.
Such freedom depends on the constitutional provision under which it is
created. If the constitutional provision recognizes the Commission as an
independent authority and allows it to have an independent secretariat,
it will have an opportunity to act independently.

Article 118 of our Constitution, framed in 1972, requires the EC to
be an independent institution, although no initiative was taken to
create an independent secretariat from its inception. As a result, it
ended up becoming part of the Prime Minister’s secretariat. However, in
2008, during the last military-backed Caretaker Government, the
secretariat of the EC was separated from the Prime Minister’s
secretariat.

Photo: driknews

Financial independence, or lack of it, also affects the Commission’s
ability to act independently. Financial independence of the EC requires
that all its expenses be treated as charges on the Consolidated Fund of
the Republic, which would allow the Commission to budget its activities
without interference from the government. We do have such a
constitutional provision. In addition, Article 126 of the Constitution
makes it obligatory for the executive authorities’ to assist the
Election Commission in the discharge of its functions.’
However, even though the Constitution grants the Commission
independence, including financial independence, its secretariat was
separated from the Prime Minister’s office, and the government is
obligated to provide it all the necessary help, our EC has not always
been able to enjoy unfettered freedom. One reason for this state of
affairs is that the government still appoints the secretary and other
senior staff of its secretariat.In addition, in the past the government
did not always respect the wishes of the Commission with regard to its
requests for such appointments. Similarly, the government did not
provide the support requested by the Commission. For example, the
government failed to comply with the Commission’s request to deploy the
army during the Narayanganj City Corporation election in 2011.
Bureaucratic procedures also at times interfere with the Commission’s
independence. One of the worst cases of governmental interference took
place during the tenure of the Four-party

Alliance government, when the Commission members had to go to the
Court to get their salaries paid. Thus, strengthening the EC would
require the government to fully respect the Constitution and allow the
Commission independence.

Authority to Act
The EC’s authority comes from the legal framework, which includes the
constitutional provisions as well as statutory laws. As stated earlier,
our Constitution mandates it with the responsibility of superintendence,
direction and control with regard to presidential and parliamentary
elections, and the preparation of the electoral roll and the
delimitation of constituencies. Such responsibility gives the Commission
almost unlimited powers with regard to elections. In Altaf Hussainvs
Abul Kashem[45DLR(AD)(1993)], the Appellate Division of the Bangladesh
Supreme Court stated: ‘In our legal system relating to elections … the
Election Commission’s inherent power under the provisions of
‘superintendence, control and direction’ should be construed to mean the
power to supplement the statutory rules with the sole purpose of
ensuring free and fair elections.’ In other words, the EC has a
‘reservoir of power’ to ensure credible elections (Afzal Hussain vs.
Chief Election Commissioner [45DLR(AD)(1993)].Such inherent power gives
the Commission the final say in all election related matters.

Several laws were enacted over the years to operationalise the
constitutional provisions and give the EC specific authorities in
matters relating to elections. The major laws creating a legal framework
include: The Representation of People Order, 1972(RPO), The Electoral
Roll Act, 2009, The Delimitation of Constituencies Act, 1976, The Jatiyo
Sangsad (Sangrokhito Mahila Ashon) Nirbason Ain, 2004, Rastrpoti
Nirbason Ain, 1991,etc. In addition, the legal framework includes
various rules and codes of conduct.
During the last Caretaker Government, the RPO, which is the main law
governing the parliamentary elections, was extensively amended by
promulgating an ordinance, further codifying the Commission’s authority.
The amendments, among others, included provisions for the compulsory
registration of political parties, the no-vote option, the process of
nominating candidates for parliamentary elections, disclosure
requirements, etc. The amendments also gave the Commission the authority
to disqualify candidates for violation of electoral laws and rules.
However, the Ninth Parliament, while ratifying the ordinance, abolished
the provision for the no-vote option and made it optional, rather than
compulsory, to nominate candidates from the panel prepared by the
various committees of the party.

Photo: star

In order to help the EC do its job more effectively, the RPO must be
amended to include provisions for online filing of nomination papers,
including the affidavits. The Commission must also be given the
authority to scrutinize the affidavits submitted by the candidates after
the elections and cancel the elections of those who got elected by
swearing false affidavits. The EC may be authorised to set up a tribunal
only to hear and dispose of complaints from voters regarding the
information disclosed or not disclosed in the affidavits by candidates.
In addition, the EC must be authorised to audit the election expense
reports and declare the elections of those submitting false reports
void. The provision for submitting a ‘counter affidavit’ that challenges
a candidate’s affidavit should be included in the RPO, and the
candidates must be made aware of this provision.

To make the EC more effective, the provision for the no-vote must be
reinstated. Similarly, nominations by parties must be based on the panel
prepared by the party’s grassroots committees.

ProperConstitution of the Commission
An organisation is as strong as the people constituting it. Many
citizens are of the opinion that our present EC is not constituted with
the appropriate people. No woman is included in the Commission. In
addition, some of the Commissioners are viewed as biased. For example,
two of the Commissioners belonged to a particular batch of the civil
service, which was recruited without going through the usual
examinations, and is named after a senior leader of the ruling party.
Because of their background they also suffered undue deprivation during
their career in the hands of an opposition political party. There are
also concerns that some other Commissioners lack the appropriate
qualifications and stature. Thus, in order to strengthen the EC, the
Commission must be constituted with honest, bold and neutral
individuals.

Article 118 of our Constitution requires the enactment of a law to
govern the appointment of the members of the EC. In the last 42 years
since the framing of the Constitution, no such law was passed by the
Parliament. The Huda Commission left a draft law for the reconstitution
of the commission, which was also ignored by the government. However,in
2012, the President issued a circular setting up a Search Committee for
reconstituting the EC. Unfortunately, some of the Committee members were
not neutral and the Committee also did not follow a transparent
procedure to recommend names of the Commission members.
Thus, in order to reconstitute the Commission in the future, a law must
be passed by the Parliament. The enacted law must specify the
qualifications of the members of the Commission and lay out a procedure
for their recruitment. The law must provide for the formation of a
Search Committee with honest and neutral individuals. The Search
Committee must also follow unbiased procedures to recommend names for
the Commission. In addition, we feel that the number of EC member,
including the Chief Election Commissioner, should be limited to three –
for five is a ‘crowd’.

Appropriate Capacity Building
Strengthening our EC would require building its capacity. In our
judgment, the capacity of the Commission needs to be enhanced in three
specific areas. Because of the short-sighted attitudes of our
politicians, our bureaucracy and law enforcement agencies have become
increasingly very partisan, which makes it very difficult to hold free
and fair elections. The situation may be greatly redressed if the
Commission can have their staff become Returning and, if possible,
Assistant Returning Officers. Thus, the Commission would need to build
staff capacity.

The EC also needs capacity building so that it can audit the
statements and reports submitted to it by candidates running for office
and political parties. Candidates submit election expense reports and
political parties submit their audited accounts and also election
expense reports. Such statements and reports must be scrutinised,
preferably using forensic accounting techniques. Similarly, our EC needs
additional capacity to be able to scrutinize the affidavits submitted
by candidates.

It is clear that the EC must be strengthened to ensure free, fair and
inclusive elections in order to bolster and sustain our democratic
system. As an institution, it must be independent. There must be an
appropriate legal framework giving the Commission the necessary
authority to do its job. It must also be constituted with honest,
courageous and neutral individuals and its capacity must be built
appropriately. However, even the strongest Commission would not be able
to deliver credible poll outcomes unless the government at the time of
elections is neutral and acts in an honourable manner. This is the only
way towards a brighter, stable and more democratic future for the
country.